B-160314, NOV. 1, 1966

B-160314: Nov 1, 1966

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TO ALASKA INSPECTION SERVICE AND RICHARDSON X-RAY: REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 27. WAS IMPROPERLY TERMINATED FOR DEFAULT. IT APPEARS FROM YOUR TELEGRAM THAT THE JOINT VENTURE WAS TERMINATED BECAUSE THE CONTRACTING OFFICE APPARENTLY WAS DISSATISFIED WITH THE PERFORMANCE UNDER THE CONTRACT. SINCE THE ISSUE INVOLVED IS ESSENTIALLY A FACTUAL MATTER. IT WOULD NOT BE PROPER FOR OUR OFFICE TO CONSIDER THE MERITS OF YOUR COMPLAINT UNTIL AFTER YOU HAVE EXHAUSTED YOUR RIGHT OF ADMINISTRATIVE APPEAL. BOTH THE CONTRACTOR AND THE GOVERNMENT ARE BOUND TO FOLLOW THE PROCEDURE SET OUT IN THE CONTRACT FOR THE ADMINISTRATION OF DISPUTES ARISING OUT OF THE CONTRACT AND THE CONTRACTOR MUST EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER THE DISPUTES CLAUSE BEFORE APPEALING EITHER TO OUR OFFICE OR THE COURTS.

B-160314, NOV. 1, 1966

TO ALASKA INSPECTION SERVICE AND RICHARDSON X-RAY:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 27, 1966, PROTESTING THAT UNITED STATES ARMY CORPS OF ENGINEERS CONTRACT DACA85-67-C-0012, WITH YOUR JOINT VENTURE, WAS IMPROPERLY TERMINATED FOR DEFAULT, AND REQUESTING THAT OUR OFFICE REQUIRE THE CONTRACTING OFFICER TO WITHDRAW THE TERMINATION UNTIL IT HAS AN OPPORTUNITY TO MAKE A FULL INVESTIGATION OF THE MATTER.

IT APPEARS FROM YOUR TELEGRAM THAT THE JOINT VENTURE WAS TERMINATED BECAUSE THE CONTRACTING OFFICE APPARENTLY WAS DISSATISFIED WITH THE PERFORMANCE UNDER THE CONTRACT. SINCE THE ISSUE INVOLVED IS ESSENTIALLY A FACTUAL MATTER, IT WOULD NOT BE PROPER FOR OUR OFFICE TO CONSIDER THE MERITS OF YOUR COMPLAINT UNTIL AFTER YOU HAVE EXHAUSTED YOUR RIGHT OF ADMINISTRATIVE APPEAL. IN THAT REGARD, THE DISPUTES CLAUSE IN STANDARD GOVERNMENT CONTRACTS PROVIDES THAT ALL DISPUTES ON QUESTIONS OF FACT BE DECIDED BY THE CONTRACTING OFFICER, WITH THE CONTRACTOR HAVING A RIGHT OF APPEAL FROM SUCH DECISION TO THE HEAD OF THE AGENCY INVOLVED. BOTH THE CONTRACTOR AND THE GOVERNMENT ARE BOUND TO FOLLOW THE PROCEDURE SET OUT IN THE CONTRACT FOR THE ADMINISTRATION OF DISPUTES ARISING OUT OF THE CONTRACT AND THE CONTRACTOR MUST EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER THE DISPUTES CLAUSE BEFORE APPEALING EITHER TO OUR OFFICE OR THE COURTS. SEE B. H. DEACON CO. V. UNITED STATES, 189 F.SUPP. 146; HAPPEL V. UNITED STATES, 176 F.SUPP. 787, AFFIRMED 279 F.2D 88; AUTOMATIC SCREW PRODUCTS COMPANY V. UNITED STATES, 145 CT.CL. 94; 37 COMP. GEN. 568 AND AUTHORITIES CITED THEREIN.

ACCORDINGLY, YOUR PROTEST WILL NOT BE CONSIDERED AT THIS TIME NOR MAY OUR OFFICE REQUIRE THE ACTION YOU REQUEST. IF YOU ARE UNSUCCESSFUL IN ANY APPEAL OF YOUR CLAIM YOU MAY TAKE THROUGH THE ADMINISTRATIVE PROCESS, AND IF YOU BELIEVE THEN THAT THE DENIAL OF THE CLAIM IS ERRONEOUS IN POINT OF FACT OR LAW, YOU MAY THEN REQUEST OUR OFFICE TO REVIEW THE MATTER ACCORDING TO THE STANDARDS OF THE WUNDERLICH ACT, 41 U.S.C. 321, 322.